Tuesday, April 08, 2008

Child porn, 6th Amendment and Anticipatory Overrulings

In a recently published book masquerading as a judicial opinion, Judge Jack Weinstein holds that the 6th Amendment guarantees a defendant's right to have the jury informed that if convicted he faces a mandatory minimum sentence. The case involves an otherwise law-abiding defendant who received a five-year sentence for receiving (via the internet) child pornography. The jurors were not informed that a conviction would result in five years imprisonment, and some were distressed upon learning this fact after they found the defendant guilty. Judge Weinstein says that in this case, not informing the jurors of the sentence impermissibly interfered with their ability to perform their historic office of tempering harsh categorical rules adopted by the legislature with the wisdom and values of regular people. Judge Weinstein finds support for the right in recent Supreme Court cases---especially those involving the relative role of judge and jury in sentencing.

Whether the rule Judge Weinstein adopts is appropriate is an important and interesting question, closely related to the question (also discussed by Judge Weinstein) of whether jurors must be (or even can be) informed of their right to nullify the law by acquitting people who are factually guilty. But that's not what I want to talk about. Instead, I'll raise an issue that has been mooted a bit by Professors Orin Kerr and Marty Lederman over on the Volokh Conspiracy (here, here, here, and here). Kerr says that Weinstein's ruling---insofar as it anticipates that the Supreme Court would overrule an old decision based on the rationales of newer cases---violates the rule laid down by the Supreme Court in Rodriguez de Quijas v. Shearson/Am. Express, Inc., namely: "If a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [a lower federal court] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."

Lederman disagrees with Kerr's contention that any holding of the Supreme Court actually had any "direct application" in Judge Weinstein's case, but let's put that aside. Here I want to take issue with the Rodriguez de Quijas principle itself. Back in 1994, University of Michigan Law School Dean (then a UCLA law professor) Evan Caminker and I simultaneously wrote articles on more or less the same subject: Under what circumstances should a lower court try to predict what a higher court would decide? (Caminker's article appeared in the November 1994 issue of the Texas Law Review; mine appeared in the February 2005 issue of the UCLA Law Review.) Caminker thought the RdQ rule justified; I did not, and still don't.

Interested readers can look up our respective articles and see what we had to say back then about RdQ and more broadly about prediction. In a nutshell, my view is that it's legitimate for lower court judges to say the law has changed in the same way that the Supreme Court might say, but not to "predict" what the Supreme Court would do based on counting noses of individual Justices. Here I would add another reason to be skeptical of the RdQ rule: As the Supreme Court's docket has shrunk, the lower federal courts have become the final decision maker for a higher percentage of cases. If, based on a lower federal court judge's best understanding of the law as it is---including recent cases seemingly rejecting the reasoning of earlier cases---that judge concludes that some earlier decision is no longer good law, then the litigants who are likely not to have access to the Supreme Court, should have the benefit of the lower court judge's best understanding, and not be governed by the antiquated rule.

Posted by Mike Dorf